Discharge Without Conviction

What is discharge without conviction?

A discharge without conviction is a sentence that is available to a defendant who has been found guilty or has pleaded guilty. Usually, when the defendant is found guilty or pleads guilty, they are convicted of that offence. However, a Judge can still decide to not convict the defendant under section 106 of the Sentencing Act 2002. This results in the defendant having no criminal record, even if they are guilty of an offence. 


Criteria for discharge without conviction

Before the sentencing Judge makes a decision on whether the defendant will be granted a discharge without conviction they must weigh the seriousness or gravity of the criminal offending against the identified consequences of the defendant being convicted. A common consequence may be the risk of loss of employment, risk of deportation or an inability to pursue an identified career path.


When considering the gravity or seriousness of the offending, the Judge will consider factors such as:


  • The nature of the offending and whether the defendant’s criminal history. Any previous criminal convictions, criminal charges and discharges or formal warnings will have a negative impact on a discharge application.
  • Personal characteristics and actions of the defendant. There are many things that can be taken into account to mitigate or reduce the gravity of the offending. These include entering early guilty pleas, genuine displays of remorse, participating in a formal apology process with the victim, completion of volunteer work in the community or engaging in appropriate rehabilitation courses. 

Direct and indirect consequences

Once the sentencing Judge determines the gravity of the offence, they must then determine the direct and indirect consequences of a conviction. This is a critical part of the application process and typically requires the submission of appropriate affidavit evidence from an employer, an immigration expert or whatever third party will help explain the identified consequences of a conviction. Our office works with a range of appropriate experts to help advance these applications on behalf of our clients.


Once the Judge has received submissions on any identified consequences of a conviction, they must then decide if they would be out of all proportion to the gravity of the offence.

As part of that determination, the sentencing Judge will also consider:


  • The purposes of the Sentencing Act. In some cases, the need to rehabilitate a defendant may outweigh the need to deter  further offending, pursued by a prosecutor or the victim.
  • The principles of the Sentencing Act. If the defendant is charged with a more serious offence, the prosecutor is likely to oppose a discharge without conviction. However, this must be balanced against other relevant factors such as the defendant’s whānau, community and cultural background and support, which can have a positive impact on the application process.

 

A discharge without conviction is a very favourable sentencing outcome that gives the defendant a second chance. That's why the sentencing Judge will carefully consider all of the facts surrounding the offending, any previous convictions, but also the impact that the conviction can have on the defendant’s future.

Ready to get a discharge without conviction?

Having a criminal law expert who has successfully obtained numerous discharges without conviction for clients facing a range of different charges, is always a smart choice. That's why choosing Adam Holland, a trusted and experienced Auckland criminal lawyer, to represent you in your case will have a positive impact on getting you on the right track to avoiding a criminal conviction on your record. Get in touch with Adam today!


Recent Discharge Without Conviction Cases

An Indian national plead guilty to a charge of indecent assault following a work place incident.  A discharge without conviction was granted on the basis of likely deportation if a conviction was enter.

High school student charged with a serious burglary and two fraud charges after attempting to sell stolen jewellery taken during the burglary. He successfully applied for a discharge without conviction on all three charges he faced on the basis of the impact conviction would have on his future job prospects.


A young woman was charged with wounding with intent to cause grievous bodily harm and was facing a lengthy term of imprisonment after a domestic incident left the victim with a serious brain injury. Following a careful investigation of the file, Adam was able to get the charge reduced to a lesser wounding charge. Then, against strong Crown opposition, a discharge without conviction was granted on the basis of likely employment issues and the impact of a conviction on the defendant's young family.

Client plead guilty to injuring with reckless disregard after an incident in a bar where he struck the victim to the face with a broken bottle. Against strong Police opposition, a discharge without conviction was granted on the basis of likely deportation and loss of job.

A Pakistani national who had recently immigrated to New Zealand was charged with indecent assault following several incidents at his workplace. After helping the client engage in appropriate counselling, a guilty plea was entered and a discharge without conviction application was then advanced and declined in the District Court. In a precedent-setting decision in the Court of Appeal, the decision was overturned on the basis that the defendant and his family would likely be deported if the conviction remained in place.